Bills Digest No. 91 2003-04

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

To amend the
Agricultural and Veterinary Chemicals (Administration) Act1992 (the Act) as part of the legislative changes required
to allow ratification of the Rotterdam Convention on the Prior
Informed Consent Procedure for Certain Hazardous Chemicals and
Pesticides in International Trade (the Rotterdam Convention)
and the Stockholm Convention on Persistent Organic
Pollutants (the Stockholm Convention).

The Act established the National Registration
Authority for Agricultural and Veterinary Chemicals (the NRA). The
NRA(1) is the Australian government authority
responsible for the assessment and registration of pesticides and
veterinary medicines and for their regulation up to and including
the point of retail sale.

In 1994, Part 7A was introduced into the Act
by the Agricultural and Veterinary Chemicals (Consequential
Amendments) Act 1994 to give the NRA control over the
importation, manufacture and exportation of, in the language of the
Act, active constituent and chemical products . Currently Part 7A
contains offences regarding the illegal importation etc of
prescribed active constituent and chemical products (hereafter
chemicals ) and accompanying enforcement powers, including search
and seizure.

In July 1999, Australia signed the Rotterdam
Convention. As its name implies, the emphasis of the Rotterdam
Convention is the exchange of information between countries so that
importing countries are fully aware of the potential hazards of
importing relevant certain chemicals and pesticides. The Rotterdam
Convention does not actually ban any chemicals or pesticides.

Australia signed the Stockholm Convention in
May 2001. Persistent Organic Pollutants (POPs) are chemical
substances that persist in the environment, and accumulate in the
food chain, thus posing significant risks to human health and the
environment. Parties to the Convention must take measures to reduce
or eliminate the release of POPS into the environment, including
managing wastes that may contain POPs.

Essentially the Bill provides that regulations
may prescribe that a person who imports, manufactures, uses, deals
with or exports nominated chemicals must provide specified
information to the NRA or the Department administering the Act. The
requirement to provide information can include chemicals that are
the subject of an international agreement that is not yet in force
in Australia or even a prospective agreement that is still under
negotiation. The Bill creates offences for failing to supply the
required information or for supplying false or misleading
information. (if any)

New section 69CA allows for
regulations to prescribe that information requirements attach to
specified chemicals for the purposes of complying with a prescribed
[international] agreement or arrangement . A person who imports,
manufactures, uses, deals with or exports relevant chemicals must
provide the prescribed information to the relevant
agency(2) in a form and within a time period to be set
out in regulations. Such requirements cannot apply before the
relevant agreement or arrangement comes into force in
Australia.

New section 69CB mirrors
new section 69CA except that it is anticipatory in
scope. That is, it allows for information requirements to apply to
chemicals that are the subject of an international agreement that
is not yet in force in Australia or are under consideration either
by an international agreement that is not yet in force in Australia
or a prospective agreement that is still under
negotiation.(3) Where a person only manufactures, uses
or deals with(4) the relevant chemical, the information
requirements only arise where the situation falls within the
Commonwealth s constitutional power with respect to trading
corporations, interstate or overseas trade, Territories, or
Commonwealth entities.

New section 69CC allows the
administering Department or the NRA to provide other countries or
relevant international organisations with information regarding
importation, manufacture, use, exportation or any other dealing
with chemicals which is prescribed in regulations pursuant to
new subsections 69CA(1) or
69CB(2). In doing so, the Department or the NRA
may (but is not obliged to) take into account the terms of
the international agreement or arrangement and the interest of any
person in maintaining confidentiality with respect to the movement,
use etc of the chemicals in question.

New section 69CD creates two
offences in relation to the information obligations under
new sections 69CA and 69CB.

A person who fails to provide the information
as required is subject to a fine of up 50 penalty units ($5500):
new subsection 69CD(1).(5) Strict
liability applies to the question of whether the information is
required eg it is no excuse for a person to say that they were
unaware that the information was required.

The provision of false or misleading
information is subject to a fine of up 300 penalty units ($33 000):
new subsection 69CD(3).(6)
Specifically, an offence occurs where a person knowingly provides
false or misleading information and fails both to tell the
agency about the relevant deficiencies and provide the correct
information where he or she possesses it, or can reasonably acquire
it. The fault element applying to this failure aspect of the
offence is recklessness. Presumably this is designed to place
significant responsibility on the provider of information to ensure
that the relevant authorities are given the most accurate
information possible. Strict liability applies to the issue of the
circumstances where the information is provided: eg it is no excuse
that certain (false or misleading) information is provided by
accident.

Item 2 substitutes a new
version of subsection 69C(1). Existing subsection
69C(1) allows for the making of regulations to prohibit the
importation etc of chemicals when such a requirement is necessary
under a specified international agreement or arrangement. The new
version will allow a prohibition to apply to the use or any other
dealing in addition to the existing situations of import, export or
manufacture. Thus its width is expanded, although the
Explanatory Memorandum to the Bill suggests the purpose of
the amendment is to [provide] for greater clarity of the intent of
the subsection .(7)Item 6 inserts a
consequential amendment to existing subsection 69C(5) which extends
the existing offence provisions to the use and dealing with
chemicals which are the subject of regulations made under
new subsection 69C(1).

Item 8 inserts new subsection
69EA(1A) which deals with record keeping. It provides that
a person who imports, exports, manufactures, uses or deals with
chemicals must keep any relevant records for six
years.(8) The Explanatory Memorandum comments
that this provision applies to records that enable the Department
to ascertain whether the relevant sections relating to
international agreements have been complied with .(9)
Failure to retain records accordingly is subject to a fine of 30
penalty units.

Due to the fact this Bill is due to debated in
the House of Representatives very shortly after its introduction
into Parliament, it has not been possible to research stakeholder
views on the specific provisions of the Bill. However, formal
consultations with stakeholders were conducted during mid-2002
regarding the proposed ratification of the Rotterdam and Stockholm
Conventions. These consultations and the views of stakeholders are
summarised in the respective National
Interest Analysis accompanying the tabling of the Conventions
before Parliament on 9 September 2003. If the summaries are
accurate regarding stakeholder views, there would appear to be wide
support for ratification. The main concerns seem to relate to the
need for ongoing consultation with respect to implementation of the
Conventions in Australia, particularly in relation to minimising
costs of administration etc. During September and October 2003, the
Joint Standing Committee on Treaties held a very brief inquiry into
the Conventions. The resultant
report recommended that ratification take place for both
Conventions.

In 2003 the NRA made an administrative decision to change its
name to the Australian Pesticides and Veterinary Medicines
Authority (APVMA), but it is still referred to as the NRA in all
relevant legislation.

This is defined in new section 69EAA as the NRA
or the Department. By virtue of section 19A of the Acts
Interpretation Act 1901, the Department is the Department that
administers the Act in this case the Department of Agriculture,
Fisheries and Forestry.

There is no indication how far advanced any bilateral or
multilateral discussions would have to be to constitute
negotiations in this context.

As opposed to importing or exporting.

Corporations would be subject to a maximum penalty of 250
penalty units.

Corporations would be subject to a maximum penalty of 1 500
penalty units

P. 10.

The same requirement for record keeping applies to existing
subsection 69EA(1).

Angus Martyn
2 March 2004
Bills Digest Service
Information and Research Services

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